Mark Walsh is a contributing writer to Education Week. He has covered legal issues in education for more than two decades. He writes about school-related cases in the U.S. Supreme Court and in lower courts.

U.S. Supreme Court Deadlocks 4-4 in Teachers' Union Fee Case

The U.S. Supreme Court on Tuesday announced that it had deadlocked 4-4 in the major case on whether teachers' unions may collect service fees from non-union members, letting stand a lower court ruling that allows them to continue doing so.

The result in Friedrichs v. California Teachers Association is a major relief for public employee unions in education and other fields, as they faced the prospect of the high court overruling a 1977 precedent that authorized them to collect such fees to spread the costs of collective bargaining to non-members.

Ever since the Feb. 13 death of Justice Antonin Scalia, court watchers have speculated that the case could end in a deadlock. When the case was argued in January, Scalia appeared hostile to the unions' arguments, even though he was once seen as their best hope for gaining the necessary fifth vote to rule in favor of such fees.

Chief Justice John G. Roberts Jr. announced the result from the bench Tuesday morning before the court heard oral arguments in unrelated cases.

Per the court's practice in such deadlocks, the opinion in Friedrichs reads in full: "Per Curiam [By the Court]. The judgment is affirmed by an equally divided court."

That means a ruling by a panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, in favor of the unions is affirmed by the Supreme Court, but does not set a national precedent.

The 9th Circuit court panel had ruled unanimously that the challenge to the service fees by a group of 10 California teachers who refused to join the union could not go forward because of controlling precedent.

The dissident teachers took that ruling to the Supreme Court, asking the justices to overrule its 1977 decision in Abood v. Detroit Board of Education.

Backers of the challenge to the union fees have said that in the event of a deadlock, they would ask the high court for a rehearing, to be conducted after the vacancy on the court is filled. The court rarely grants rehearings for any reason, and the political uncertainty over President Barack Obama's nomination of Merrick B. Garland to fill Scalia's seat would seem to make that possibility in this case highly unlikely.

[UPDATED: Tuesday 11:20 a.m. FURTHER UPDATE 2:50 p.m.]

Rebecca Friedrichs, the Southern California teacher who has been the outspoken lead plaintiff in the case, said in a conference call with reporters that "while this split decision is disappointing, we knew this was the most likely outcome after the unfortunate death of Justice Scalia."

Friedrichs, a 28-year veteran of the classroom, said that teachers "are very patient people. We are in this for the long haul."

Terence J. Pell, the president of the Center for Individual Rights, a Washington public-interest legal group that was behind the challenge, said in an interview that the deadlock "was not unexpected given Justice Scalia's death."

"We will file a petition for rehearing, and we expect the court will hold on to the petition pending the confirmation of a new justice," he said. "If there are five votes for it, then the case will be re-heard."

Pell continued to insist that rehearing would be in the interest of public-employee unions as well, especially if they perceived the successor to Scalia to be more sympathetic to their views.

"They would be well-served by an authoritative opinion in their favor, just as we would be," said Pell.

But the teachers' unions and other public-employee labor groups involved in the case appeared perfectly content to accept the deadlock as a victory, though statements by their leaders tended to read more into the court's action than was likely justified.

"Today's ruling by the Supreme Court reaffirms that it is in the best interest of our students and our communities for educators to have a strong voice on the job," Eric C. Heins, the president of the California Teachers Association, said in a statement.

Lily Eskelsen García, the president of the National Education Association, the parent of the CTA, said the court "rejected a political ploy to silence public employees like teachers, school bus drivers, cafeteria workers, higher education faculty and other educators to work together to shape their profession."

"In Friedrichs, the court saw through the political attacks on the workplace rights of teachers, educators and other public employees," Garcia added. "This decision recognizes that stripping public employees of their voices in the workplace is not what our country needs."

Both Eskelsen and Heins joined a conference call with the leaders of the American Federation of Teachers, the American Federation of State, County, and Municipal Employees, and the Service Employers International Union in which they stressed a message that unions are under attack by corporate interests.

"Today's decision was one for working people and for working families," said AFT President Randi Weingarten on the call. "What the court did is stop the onslaught of the right wing to break up unions."

Heins acknowledged other pending lawsuits that seek to eliminate the unions' right to collect service fees. "Nobody is under the illusion that [the Friedrichs case outcome] is going to stop the attacks," he said.

Mary Kay Henry, the president of the SEIU, said the unions understand that the decision is "a temporary reprieve" from further challenges.

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